Decision Date: 11/02/95 Archive Date:
11/02/95
DOCKET NO. 93-24 613 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Boston,
Massachusetts
THE ISSUE
Entitlement to service connection for a back disability.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
Stanley Grabia, Associate Counsel
INTRODUCTION
The appellant had active service from February 1943 to
February 1946. This matter came before the Board of
Veterans' Appeals (hereinafter Board) on appeal from a July
1992 rating decision of the Boston, Massachusetts Regional
Office (hereinafter RO), which denied service connection for
a back disability.
A hearing was held on January 27, 1994 before a member of
the Board in Washington, D.C.
REMAND
Service medical records indicate that the veteran was
treated for injury to his lower back. The appellant in his
substantive appeal dated in August 1993 alleged treatment
for his back disability from 1946 to 1954 at the Kingsbridge
VA Medical Center (MC). He also alleges treatment from
Bruce Brown, M.D. from 1954 to 1972, and "Dr. Lamkins"
starting in 1972. The RO has apparently not attempted to
obtain these medical records. The RO only received records
from the Bedford, Massachusetts VAMC, pertaining to
treatment in 1991 and 1992. These records indicate the
veteran was enrolled in a rehabilitation program for
treatment of severe scoliosis.
The Board has a duty to assist the appellant in developing
the facts relevant to his claim. 38 U.S.C.A. § 5107(a)
(West 1991). That duty includes obtaining medical records
and physical examinations when indicated by the facts of the
case. See Murphy v. Derwinski, 1 Vet.App. 78 (1990); Littke
v. Derwinski, 1 Vet.App. 90 (1990). The appellant's
representative in the January 27, 1994 hearing before the
Board contended that the RO did not make any efforts to
obtain medical records from sources other than the Bedford
VAMC. It appears from the record that the RO did not
attempt to obtain the veteran's medical records from the
Kingsbridge VA Medical Center, or from Dr. Brown, or Dr.
Lamkins nor has a proper and thorough compensation
examination by an orthopedic specialist been ordered to
determine the etiology of the current back disability.
Accordingly, the case is REMANDED for the following
development:
1. The RO should obtain all available originals or copies
of records of relevant treatment of appellant's back
disability from Bruce Brown, M.D., 92 Main Street, Rockport,
Massachusetts, and Dr. Lamkins, Beverly, Massachusetts. The
appellant should be contacted and requested to provide Dr.
Lamkin's complete name and mailing address, and should sign
and submit the appropriate consent forms to release any
private medical records to the VA.
2. The RO should schedule the appellant for an examination
by an orthopedic specialist to determine the etiology of the
appellant's current back disability, and whether it may be
attributable to his back injury recorded in his military
medical records. He/she should opine, with the degree of
probability, as to whether the record of symptomatology in
service represented acute versus chronic disability. He/she
should comment on the negative back findings and lack of
complaints on the separation examination. All indicated
tests should be accomplished and all clinical findings
should be reported in detail. The claims folder should be
provided to the examiner for review prior to the
examination. After reviewing the claims folder and
examining the veteran, the examiner should describe whether
any back impairment found can reasonably be attributed to an
active duty injury during World War II. All findings and
opinions should be clearly set forth, and it should be noted
whether the opinions reached were based in part on clinical
history provided by the veteran.
In order to avoid undue delay in this case, the RO should
make certain that the instructions contained in the REMAND
decision, detailing the requested development, have in fact
been substantially complied with. When this development has
been completed, and if the benefit sought is not granted,
the case should be returned to the Board for further
appellate consideration, after compliance with appropriate
appellate procedures. It is requested that this statement
specifically set forth the reasons and bases for the
decision. No action by the appellant is required until he
receives further notice.
The Board intimates no opinion, either legal or factual, as
to the ultimate disposition warranted in the claim for
entitlement to service connection for appellant's back
disability, pending completion of the requested development.
HOLLY E. MOEHLMANN
Member, Board of Veterans' Appeals
The Board of Veterans' Appeals Administrative Procedures
Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740,
___ (1994), permits a proceeding instituted before the Board
to be assigned to an individual member of the Board for a
determination. This proceeding has been assigned to an
individual member of the Board.
Under 38 U.S.C.A. § 7252 (West 1991), only a decision of the
Board of Veterans' Appeals is appealable to the United
States Court of Veterans Appeals. This remand is in the
nature of a preliminary order and does not constitute a
decision of the Board on the merits of your appeal. 38
C.F.R. § 20.1100(b) (1994).
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